Johnson v. Township of Montville

Decided: April 9, 1970.

JAMES J. JOHNSON AND MARY B. JOHNSON, HIS WIFE, AND CURTIS DECKER AND THERESA DECKER, HIS WIFE, PLAINTIFFS-APPELLANTS,v.TOWNSHIP OF MONTVILLE, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT

Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Labrecque, J.A.D.

Plaintiffs challenge a judgment of the Law Division affirming the validity of an amendment to the zoning ordinance of the Township of Montville rezoning a tract of approximately 450 acres in that municipality from an A-3 residential zone to a D-3 industrial zone. They raise three points: (1) passage of the amendatory ordinance was by less than the two-thirds vote of the township committee required by N.J.S.A. 40:55-35; (2) the rezoning of the subject property was not in accordance with a comprehensive plan, and (3) it was unreasonable, arbitrary and capricious.

N.J.S.A. 40:55-35 provides, in pertinent part, as follows:

In case of a protest against such proposed change signed by the owners of twenty per centum (20%) or more either of the area of the lots or land included in such proposed change, or of the lots or land in the rear thereof extending one hundred feet therefrom, or of the lots or land on either side thereof or directly opposite thereto extending one hundred feet therefrom (exclusive of street space), such change shall not become effective except by the favorable vote of two-thirds of all the members of the governing body or board of public works of such municipality.

The amendatory ordinance was passed by a vote of 3 to 1 with one member of the governing body abstaining.

The proposed industrial zone is located between the Rockaway River, which borders Montville on the west, and Change Bridge Road on the east. John Henry Drive and Van Riper Avenue, are two parallel streets serving a small A-3 residential area, extending into the new industrial zone in a generally westerly direction from Change Bridge Road. At the time the amendatory ordinance was up for consideration by the township committee a group of owners of property on John Henry Drive and Van Riper Avenue, including plaintiffs herein, filed a protest against its passage.

The manner in which plaintiffs arrive at the conclusion that a two-thirds vote of the governing body was necessary to passage of the amendatory ordinance is summarized in their factual and legal contentions contained in the pretrial order, as follows:

The plaintiffs contend that the north side of Van Riper Avenue and the south side of John Henry Drive, each constitute the rear or a side of the rezoned area within the purview of the statute and that if 20% of the lot owners or owners of 20% by area of all the lots on the north side of Van Riper Avenue or the south side of John Henry Drive, signed the petition, a 2/3's vote was required.

They assert (and it is not disputed) that four of the ten lot owners on the north side of Van Riper Avenue and six of the twelve lot owners on the south side of John Henry Drive signed the protest petition. They contend that this amounts to a protest by the owners of more than 20% of the lots or land in the rear or on a side of the new D-3 zone.

The core issue presented by plaintiffs' foregoing contention is whether each of the sides of this residential area which projects into the proposed industrial zone and adjoins it, amounts to a "rear" or "side" of the rezoned area within the purview of the statute. It appears from the zoning map that projecting into the proposed industrial zone, but not included therein, there are four additional nonindustrial

areas. Under the interpretation advanced by plaintiffs, if the owners of 20% of the property on any side of any one of these areas adjoining the new zone had filed a protest, a two-thirds vote would ...

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